* Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 96-10204

_______________________

CHRISTINA MAE ROMAINE

f/k/a CHRISTINA MAE MUNDY,

Plaintiff-Appellant,

versus

CHARTER MEDICAL CORPORATION

and CHARTER-PROVO SCHOOL, INC.,

d/b/a PROVO CANYON SCHOOL,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

(4:95-CV-542-A)

_________________________________________________________________

April 30, 1997

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

Appellant Romaine sued Charter Medical Corporation and

Charter-Provo School, Inc. d/b/a Provo Canyon School in June, 1995,

for claims arising from her treatment there between June, 1988 and

June, 1989. The case was removed to federal court, and the
2

district court dismissed because the Texas two-year statute of

limitations had run. In so doing, the court rejected Romaine’s

assertion that limitations has been tolled by one or more of the

following events: (1) her legal disability by reason of unsound

mind, Texas Civ. P. and Rem. Code § 16.001; (2) the applicability

of the discovery rule; and (3) fraudulent concealment or duress

perpetrated by defendants. The court also overruled Romaine’s

contention that application of the Texas two-year statute to her

claims is a violation of the Open Courts provision of the Texas

Constitution. On motion for reconsideration, the court refused to

consider two affidavits offered by Romaine, considered one

additional affidavit and then determined that the motion and new

affidavit failed to raise a genuine issue of material fact.

Romaine timely appealed.

In general, we endorse the district court’s reasons for

enforcing the statute of limitations defense. Contrary to

Romaine’s view, she bore the burden under Texas law to present

evidence creating a genuine issue of fact as to all elements of at

least one of her tolling theories. See Weaver v. Witt, 561 S.W.2d

792, 794 n.2 (Tex. 1977). She failed to carry that burden.

First, Texas law is not so elastic as to permit a finding

that Romaine was of “unsound mind” throughout the period from 1989

to 1995 when she finally filed suit. The tolling provision is

designed to protect persons without access to the courts and those
3

who are unable to participate in, control, or understand the

progression and disposition of their lawsuit. Ruiz v. Conoco, 868

S.W.2d 752, 755 (Tex. 1993). See also, Helton v. Clements, 832

F.2d 332 (5th Cir. 1987). While Romaine’s mental problems have

interfered with her personal life and occasionally required

hospitalization, evidence shows that she was able to discontinue

her medication during pregnancy, that she consulted with counsel in

her divorce proceedings and that she sought counsel more than a

year before filing suit against Charter.

Second, the discovery rule is not convincingly raised by

Romaine, because her affidavit testimony does not explain why she

was unable with the exercise of due diligence to discover the

nature of her injuries allegedly caused by the school until within

two years of filing suit. Her inconsistent, unclear statements do

not raise a genuine issue of material fact on this issue. Moreno

v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990).

Third, the duress and fraudulent concealment grounds for

tolling the statute of limitations are unavailing. Romaine does

not explain how Charter could have exercised duress against her for

the six years after she left the school. Further, fraudulent

concealment only applies where a defendant is under a duty to make

disclosure but fraudulently conceals the existence of a cause of

action from the party to whom it belongs. Borderlon v. Peck, 661

S.W.2d 907, 908 (Tex. 1993). Under Texas law, a doctor’s duty to
4

make disclosures to his patient ends with the termination of the

physician-patient relationship. Thames v. Dennizan, 821 S.W.2d

380, 384 (Tex. Ct. App. 1991). In the absence of evidence to the

contrary, Charter’s obligation to disclose and ability to coerce

effectively ended with the end of Romaine’s hospitalization in

1989.

Fourth, the claim based on the Texas Constitutional

provision guaranteeing “open courts” is meritless, as the Texas

limitations doctrines assure a reasonable opportunity of access to

the courts. Rose v. Doctors Hospital, 801 S.W.2d 841, 843 (Tex.

1990); Nelson v. Drusen, 678 S.W.2d 918, 923 (Tex. 1984).

Finally, the district court did not abuse its discretion

either in refusing to consider Romaine’s and her doctor’s

supplemental affidavits filed with her motion for rehearing or in

denying the motion. Lavespere v. Niagra Machine & Tool Works,

Inc., 919 F.2d 167, 173-74 (5th Cir. 1990), cert. denied, 114 S.Ct.

171 (1993).

AFFIRMED.